Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Saturday, August 13, 2011

More Update on Opt-outs from the Access Copyright Interim Tariff & Some Questions That May Arise

There have been two more recent and indeed very interesting and informative statements about opting-out from the Access Copyright interim tariff.

One comes from very senior officials of UBC - David H. Farrar, Provost and Vice President Academic (Vancouver) and Doug Owram, Deputy Vice Chancellor and Principal (Okanagan). (HT Michael Geist). They note that AC’s demands would increase UBC’s payments to AC “from $650,000 to $2 million per annum”. They further note that:

Moreover, the proposed tariff would require universities to give AC access to their records and systems to conduct annual surveillance of copying activities undertaken by their faculty, staff, and students. UBC considers this to be unacceptable.(emphasis added)

The terms and definitions of the Interim Tariff are very similar to the terms and definitions of the suggested new Access Copyright Post-Secondary Educational Institutions Tariff, 2011-2013 filed by AC to Copyright Board of Canada on March 31, 2010 and would have significant impact on how we teach and learn at the university and will be unacceptable for an academic institution. For example, some of these definitions identify provision of links to resources and displaying resources on computer screens as “copies”. The new tariff would also require that UNBC provides Access Copyright with unrestricted access to University secure networks, systems and records (e-mails, etc.) to conduct annual surveys of copying activities undertaken by faculty, staff, and students. This particular term is not only extremely invasive and labour intensive but UNBC also considers this unacceptable. We cannot condone this level of intrusion into our operations.(emphasis added)

UNBC goes on to quantify the expected increase in costs, and states that the “terms and definitions that would hinder core academic teaching and research practices”. Furthermore, it notes that AC’s repertoire is “not very large at this point” and that “Access Copyright is also not willing to share with institutions the list of items included in their repertoire.”

The list below indicates that 16 out of 23 (the “opt-outs”) - that is about 70% - of the non-Quebec universities whose libraries are members of the Canadian Association of Research Libraries (“CARL”) have decided to opt out of the Access Copyright (“AC”) interim tariff as approved on December 23, 2010 by the Copyright Board. This is a much more meaningful number than the percentage of total AUCC members, which I have mentioned before. AC does not operate in Quebec. All told, there are at least 34 “opt outs” to date - see below. The decisions to opt out were presumably all made with due diligence involving careful cost/benefit and risk analysis.

CARL members admittedly do not include all Canadian universities. But CARL members clearly tend to include the larger and more research intensive Canadian universities. The 95 members of AUCC include some very small universities and many non-degree granting colleges. In making these distinctions, I am in no way intending to make value judgments. Indeed, some very well known institutions are AUCC members but not CARL members. It is simply that the CARL list is probably much more relevant for present purposes than the overall AUCC list.

Here are the CARL universities outside of Quebec that have not yet opted out:

1. Brock University(ON)2. McMaster University (ON)3. Ryerson University(ON)4. Simon Fraser University (BC)5. University of Ottawa (ON)6. University of Toronto (ON)7. University of Western Ontario (ON)

Interesting questions may arise from this situation, such as:

- What effect will this clear opt-out trend have on the current Copyright Board hearing in terms of such issues as interrogatories, e.g can and should universities that have opted out be required answer AC’s interrogatories? The latter question has been put to the Board by AC and is now under consideration. Procedural sabres with potentially very serious impact on the opt-outs are being rattled. How far is AC prepared to go on this? Would AC conceivably go so far as to seek the issuance of hostile subpoenas and even ultimately a finding of “contempt”, both of which would be unprecedented at the Copyright Board? If so, what would happen? Here’s a list of the 27 opt-outs on the line on this issue at this time. They range, in alphabetical order, from Acadia to the University of Windsor.- What effect, if any, will this opt-out trend have on AUCC’s and ACCC’s positions in the Board case and their resources to fund this case?- Will those institutions that have opted-out accept a tariff that is explicitly or even just effectively universally mandatory for ALL post secondary institutions, if this is what the Board imposes? Note that AC currently takes the position that the interim tariff - which the Board expressly says is “not mandatory” - is “virtually impossible” to opt out of. AC says that “Just one copy of one page by one professor is sufficient to trigger the tariff...” And AC allegedly is refusing to issue transactional licenses.- Will that final tariff, if somehow mandatory, be retroactive as Board tariffs usually are and what would be the effect on the opt-outs? A final decision from the Board will likely not come for at least another three or four years and maybe even more, based upon time lines in recent hearings.- Are there any members of AUCC and ACCC that actually want a universally mandatory tariff, perhaps if only because they may believe that a truly optional tariff that may only be adopted by relatively few institutions may end up being more expensive than a mandatory one? One would think that it should not. However, past history at the Board suggests that this could, rightly or wrongly, become an issue and a very divisive one at that. - In light of the above, is there a potential for tension between opt-out institutions wanting a truly optional tariff and others than may want, or at least accept, a universally mandatory one? If so, how would such tension be resolved?

In any event, here is the current opt-out list with 34 institutions, based upon information provided to me: Have Already Opted-out (August 2010, January 2011 or August 2011)

1. Acadia University (NS)2. Athabasca University (AB) - as of August 31, 20113. Carleton University (ON)4. Columbia Bible College (BC)5. Concordia University College of Alberta - January 1, 20116. Dalhousie University (NS)7. Grant MacEwan University - January 1. 20118. Holland College (PEI)9. Lethbridge College (AB) - August, 201010. Memorial University (NL)11. Mount Saint Vincent University (NS)12. Mount Royal University (AB)13. NorQuest College (AB)14. Northern Lights College (BC)15. Portage College (AB) - August, 201016. Queens University (ON)17. Quest University (BC)18. Royal Roads University (BC)19. Saskatchewan Institute of Applied Science and Technology - January 1, 2011 (SK)20. University of Alberta (AB)21. University of British Columbia (BC) - as of August 31, 201122. University of Calgary (AB) - as of August 31, 201123. University of Guelph (ON)24. University of Lethbridge (AB) - as of August 31, 201125. University of Manitoba (MB)26. University of New Brunswick (NB)27. University of Northern British Columbia (BC) - as of August 31, 201128. University of PEI (PEI)29. University of Regina (SK)30. University of Saskatchewan (SK) - as of August 31, 201131. University of Waterloo (ON)32. University of Windsor (ON)33. York University (ON) - as of August 31, 2011

Intend To Opt-out in 2012

34. University of Victoria (BC)

If there is new information about opt-outs, please notify me directly or add a comment below and the list will be updated again.

4 comments:

Intrusion into universities' secure networks has to be of the gravest concern to faculty and librarians, who are in the front line of providing teaching and research. The risk to academic freedom and librarians' confidentiality can't help but single out Canada as a backward country in the eyes of international colleagues.